Surrey child support variation cases involve the proper calculation of income of the child support paying parent and in many cases the parent who receives the Surrey child support. Our Surrey child support variation lawyers understand that any initial orders or agreements for Surrey child support need to be accurate and take into account any changes that might impact a Surrey child support variation. Parents who separate often disagree out many issues. One issue they most often agree on is that they are proud to have had their children together. They also often agree that supporting their children after separation is their joint responsibility. However, there is often disagreement over what each spouse earns and what is spent on the children for extra expenses.
The moral of the case summary below on child support is: Don’t think your Surrey child support order or your Surrey child support agreement can be easily changed and don’t risk doing a foolhardy “home made” agreement or you’ll risk losing far more than you saved. Meet with us to avoid a disaster. We think you’ll agree your children deserve the right amount of Surrey child support.
Once an initial Surrey child support Order is made it is not automatically capable of being varied unless circumstances have changed in a significant way. While there is an ability to annually review child support under the Child Support Guidelines for changes in income difficulties often arise when people are not working to their full capacity, have under the table income, turn down work, quit their jobs in anger to frustrate child support or decide to return to school. In these cases the person may seek to bring on a Surrey child support variation application. At this point the court needs to decide if a realistic change has occurred that would enable a Surrey child support variation to succeed.
The reasons in the BC Court of Appeal case of Beissner v. Matheusik 2015 BCCA 308 dealt with an unsuccessful appeal by a father of a lower courts dismissal of his Surrey child support variation application. The court succinctly explained the test a spouse must meet to increase or decrease Surrey child support to win a Surrey child support variation application. Our Surrey spousal support lawyers will explain that every child support case is different and a n individual legal analysis is required by our top support lawyers at MacLean Law. We have BC’s largest family law department and 4 offices across BC in Surrey, Kelowna, Fort St John and downtown Vancouver.
Did the judge err in finding the father had not demonstrated a material change of circumstances?
[39] A material change of circumstances is the threshold issue for varying a child support order. In L.M.P. v. L.S., 2011 SCC 64, the Supreme Court of Canada confirmed the legal test in Willick v. Willick, [1994] 3 S.C.R. 670 for the variation of a child support order, stating:
[30] In our view, the proper approach under s. 17 [of the Divorce Act] to the variation of existing orders is found in Willick [citation omitted] …
[31] Willick described the proper analysis as requiring a court to “determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances” (p. 688). In determining whether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making of the prior order or variation. The onus is on the party seeking a variation to establish such a change.
[32] That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a change that, “if known at the time, would likely have resulted in different terms” (p. 688). …
[33] The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order. It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6). In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement.
[Emphasis added.]
[40] The father, relying on Willick, reiterates that his financial circumstances since the 2008 divorce order have significantly declined despite attempts by him to find remunerative work in order to return to the $65,000 income level imputed to him in the Minutes of Settlement and maintained by the September 24, 2012 order. He also submits his debt load for Wholly Noggin has continued to increase and that in order to meet his expenses he has had to exhaust his RRSPs and line of credit.
[41] With respect, the difficultly the father has in advancing these submissions in support of his application are three-fold.
[42] First, in September 2012, Russell J. found that the father had not established a material change in circumstances to support his application for a reduction in his child support from that provided for in the Minutes of Settlement. Therefore, the only window for consideration of whether he had established a material change of circumstances in his application before Fitch J. was a narrow one of some 18 months. However, all of the evidence tendered by the father with respect to the decline in his financial circumstances arose before his September 24, 2012 application. On that basis, Fitch J. found, as it was open to him to find, that the father’s “financial situation was known to the court at the time of his September 2012 application” and it had “not materially changed since” (para. 36).
[43] Second, the judge found the father’s financial disclosure in support of his application inadequate and unreliable. On appeal, the father applied to adduce fresh evidence, presumably to shore up the basis for his submissions before Fitch J. However, having reviewed that material, I am unable to find that it meets the test for the receipt of such evidence as set out in Palmer v. The Queen, [1980] 1 S.C.R. 759 at 775-76. It is therefore inadmissible.
[44] Third, the judge found that the father was underemployed. In reaching that finding, the court did not have to conclude that the father was intentionally evading or minimizing his child support obligation or that he was intentionally underemployed or unemployed. It only had to determine what income the father was capable of earning: Barker v. Barker, 2005 BCCA 177. The test for a finding of underemployment from Donovan v. Donovan, 2000 MBCA 80, was adopted by this Court in Watts v. Willie, 2004 BCCA 600 at para. 16, and followed in McCaffrey v. Paleolog, 2011 BCCA 378 at para. 46:
[16] In Donovan v. Donovan (2000), 190 D.L.R. (4th) 696, 2000 MBCA 80, Madam Justice Steel gave the judgment of the court and wrote at para. 21:
The following guidelines may be considered when determining whether to impute income. (See Dr. Julien D. Payne, Imputing Income, “Determination of Income, Disclosure of Income”, Child Support in Canada, Canrab Inc., August 3, 1999).
1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is “no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor” (Van Gool v. Van Gool (1998), 166 D.L.R. (4th) 528 (B.C.C.A.)).
2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.
3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.
4. Persistence in unremunerative employment may entitle the court to impute income.
5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.
6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.
[Emphasis in original.]
[45] Based on the evidence before him, I am unable to find any material error of law of fact by the judge in imputing an annual income of $65,000 to the father. The judge concluded that: (i) the father was a well-educated, experienced and capable businessman with substantial earning capacity; (ii) his purported reduction in income of $97,653 (in 2008) to “essentially nothing” in 2013 (para. 35) was well below his actual earning capacity and simply not believable (para. 38); and (iii) his decision in 2012 to invest in a high risk and low return venture, immediately after he was given the opportunity by Russell J. of suspending his ongoing child support obligation for a year in order to allow him to catch up on the Total Amount Due, was, as described by Fitch J. (and with which I agree), “a curious one in light of what he knew about the nature and extent of his past and probable future child support obligations at that time” (para. 38).
[46] In short, the judge found the father’s evidence and submissions on his earning capacity to be unreliable and incredible. I am unable to find any palpable and overriding error in those findings.
The moral of the story is that to win on a Surrey child support variation you need to fully organize the facts and evidence related to your application or you will meet with a negative result. Contact Lorne MacLean, QC to assess whether you meet the criteria for a successful application and to ensure you plan ahead for any chances in your finances when you are doing to a Surrey child support agreement. Don’t think the agreement can be easily changed and don’t risk doing a foolhardy home made agreement or you’ll risk losing far more than you saved.
